Bail, liberty and delay: Uneasy questions raised in Umar Khalid case

The Supreme Court’s questioning of its earlier verdict denying bail to Umar Khalid, in connection with the 2020 Delhi riots, exposes judicial mishandling that also extended the injustice the State meted out to him.

Khalid and co-accused Sharjeel Imam have been in jail for over five years. Courts, including the Supreme Court, have rejected multiple pleas for bail. 

On Monday, a bench of Justices B V Nagarathna and Ujjal Bhuyan made it clear, while hearing another bail case, that an earlier rejection of bail by a two-judge bench violated principles laid down by a three-judge bench of the Court in Union of India vs. K A Najeeb (2021).

In that case, the bench affirmed that bail is the rule and jail the exception, even in cases under the draconian Unlawful Activities [Prevention] Act (UAPA), if the trial is delayed.

Pointing to earlier rulings that established the primacy of individual rights, the Court underlined the importance of compliance with these precedents. It observed that smaller benches have hollowed out the reasoning of larger benches without expressly disagreeing with them. These are strong comments that should guide the Court, especially its smaller benches, while hearing such cases.

The continued incarceration of Khalid – accused of conspiracy in connection with the riots – defies reason and principles of justice, while the Union government appears determined to keep him in jail.

The Court noted that pre-trial incarceration would begin to acquire a post-trial punitive character if prima facie accusations made by the investigating agency were accepted as true to deny bail.

This happened in Khalid’s case, where the process became punishment. In a striking validation, a day after the apex court’s critique, a Delhi court dismissed Khalid’s interim plea for bail to take part in his uncle’s post-death rituals and to take care of his ailing mother.

The Court did well to reiterate that the basic principle about bail also applies to UAPA cases. It said the right to personal liberty and speedy trial cannot be subordinate to the stringent bail provision laid down by Section 43-D(5) of the UAPA. It also pointed out that the conviction rate in UAPA cases is a low 2-6%.

These observations are important in an environment where the State wields tools that can place fundamental rights under strain.

The Umar Khalid case is a telling example of oppressive State conduct. It is rare that the Supreme Court questions its own judgment. These questions, raised on both technical and substantive grounds, must be heard and answered.